President Duterte has endorsed a draft constitution to the two Houses of Congress for their consideration, bringing the Philippines closer than ever to changing its 1987 Constitution, which has not been amended so far. The draft includes notable innovations, including a proposed shift to a federal system and anti-dynasty provisions. Nevertheless, the constitution making process enjoys low public awareness and support and faces resistance from a self-interested Congress and skepticism from members of the President’s own cabinet, risking the draft’s total rejection – writes Professor Atienza.

In July 2018, President Rodrigo Duterte in his State of the Nation address endorsed a draft federal constitution, prepared by a Consultative Committee, to the Philippine Congress. The draft is in line with Duterte’s campaign promise in the 2016 presidential elections. He argued that nothing short of federalism can solve the conflicts and underdevelopment in Mindanao, where Davao City, which he headed as mayor, is located. However, after winning the presidency, while information drives and debates about charter change started among different stakeholders, the administration took its time to push for charter change.

In Congress, the House of Representatives, which PDP-Laban - the President’s party, has dominated since the president was elected, preferred to convene Congress into a constituent assembly and start with the work of revising the 1987 Constitution immediately. Committee hearings were held and it was obvious that the majority in the House wanted to fast-track the process. In the Senate, numerous committee hearings were held, but Senators appear less enthusiastic about charter change and consulted different groups regarding questions about the urgency of the need for constitutional change, whether the two Houses of Congress should vote separately or together on revising the constitution, and the most appropriate way of amending or revising the constitution.

Duterte issued Executive Order No. 10 in December 2016 creating a Consultative Committee under the Office of the President. The Committee was tasked to review the 1987 Constitution, conduct consultations, and submit its report, recommendations and proposal to the President. Most of the members of the Committee were only appointed in January 2018. After months of research and deliberations, the Committee unanimously approved the final draft of a proposed federal charter on 3 July 2018. The draft charter was submitted to Duterte on 9 July.

The addition of provisions excluding the current president from running again addresses trust issues that have undermined reform efforts under previous governments.

The initial draft had no provisions that specifically disallowed the current president and vice president from running for reelection for another term under a new constitution. However, upon Duterte’s request, the Consultative Committee modified the transitory provisions to make it clear that Duterte could not run again. The draft now provides that ‘the incumbent President is prohibited from running as President in the 2022 elections under the Constitution’. The new provisions also require the conduct of elections for a Transition President and Vice President six months after the new constitution is ratified. The Transition President and Vice President cannot run for any public office in May 2022, the first regular elections envisioned under a new federal constitution. The addition of these provisions addresses trust issues that have undermined reform efforts under previous governments.

Major Proposals in the Draft Charter: A Presidential and Federal System

The draft federal charter prepared by the Consultative Committee retains the presidential system and proposes a formal shift to a federal system with 18 federated regions corresponding to the 15 existing administrative regions; the Negros Island region, which was created by an executive order by President Benigno Aquino III in 2015 but later abolished by President Duterte through another executive order in August 2017; and the Bangsamoro Region and the Federated Region of the Cordilleras. The basic federal structure would be insulated from future constitutional amendment or revision. The proposed charter prohibits the advocacy, demand, or support for secession of any region from the Federal Republic.

The draft constitution provides for exclusive powers of the central government and exclusive powers of the federated regions. In addition to powers generally attributable to central governments, such as international trade and relations, defense, and citizenship, the federal government also enjoys exclusive powers over family law, basic education, elections and the protection and promotion of human rights. Law and order also fall under the central government, which would preclude the regions from having their own police forces. The regions would have exclusive powers notably in relation to economic zones, the justice system and indigenous peoples. Powers not exclusively given to either the federal government or to the regions are shared powers, to be exercised jointly or separately. In case of conflict or dispute in their exercise, the federal power would prevail. The draft also speaks of ‘reserved’ powers, which would include powers that have not been exclusively granted or are shared, and are not prohibited. As the ‘shared’ powers appear to include all powers not exclusively granted to either sphere of government, it is unclear what will fall under the list of ‘reserved’ powers.

Regional shares from federally imposed taxes would be distributed equally, without regard to population size as well as regional income from natural resources.

The draft also outlines formulas for the distribution of revenue from taxes and natural resources. Accordingly, the regions would receive at least 50% of all collected income taxes, excise taxes, value-added tax, and customs duties, to be equally divided among them and automatically released. There is no consideration for a region’s population size or land area, unlike the current Local Government Code which considers these factors in the internal revenue allotment sharing formula. Instead, there will be an Equalization Fund, which would not be less than 3% of the annual General Appropriations Act. The Fund will be distributed based on the needs of each region, with priority to those that require support to achieve financial viability and economic sustainability as determined by the Federal Intergovernmental Commission. Regions would also be entitled to 50% of all net revenue derived from exploration, development and utilization of natural resources within their territory. The share of the Cordilleras from natural resources would be 75%, possibly in recognition of the region’s rich natural resources and abundant mineral reserves. It appears that the differences in the regional shares of income from natural resources would not affect the regional allocation of tax revenue, which would be shared equally among the regions.

The plurality system for the election of the president is retained.

Interestingly, despite the granting of exclusive powers to the regions in relation to some issues, the constitution empowers the federal government to regulate various aspects of such issues, creating potential areas of overlap. This is particularly the case in relation to indigenous peoples, which are exclusively granted to the regions. At the same time, the draft empowers the federal government to protect rights to their ancestral domains and lands, and all resources found therein to ensure their economic, social, and cultural well-being (Article XV, section 9).

The draft constitution recognizes the distinct social and political identity of the Bangsamoro and the Federated Region of the Cordilleras; thus, introducing asymmetrical arrangements. Accordingly, the distribution of powers and government structure of the regions would not apply to these regions. Instead, the recently signed Bangsamoro Basic Act would be appended to the Federal Constitution. There would also be an Organic Act for the Federated Region of the Cordilleras, to be enacted by the Regional Assembly.

Senators and representatives would be required to hold a college degree or its equivalent.

The federal president and vice president would be elected through direct election. Both must hold a college degree or its equivalent and serve for a term of four years with one reelection. The separate election of the president and the vice president has been abandoned. The president must appoint the vice president to a cabinet position. The draft proposes a four-year presidential term, renewable only once. It appears that the plurality system for the election of the president is retained.

While the House of Representatives will be composed of directly elected representatives from districts and nation-wide across the Philippines, at least two senators would be elected per region. Currently, senators are elected from a national constituency. Members of the House of Representatives would number 400, 60% of whom would be elected from electoral districts, and 40% elected nation-wide through a system of proportional representation. Senators and representatives would be required to hold a college degree or its equivalent. They will serve for a term of four years, and members may not serve more than two consecutive terms. The two houses would exercise co-legislative powers.

The Constitution proposes the establishment of a 'Democracy Fund' and would require political parties to ensure equal representation of women candidates ‘as far as practicable’.

Except for the Bangsamoro and the Cordilleras, each region would have a Regional Assembly, half representing each province, highly urbanized city, and independent chartered city, and half elected through proportional representation. Members must hold a college degree or equivalent. A Regional Governor and Deputy Regional Governor would be elected together by a majority of Regional Assembly members. As the draft constitution extensively regulates the powers and structure of regional governments, it is not clear whether the regions would be allowed to adopt a sub-state constitution. Nevertheless, there are no express provisions against regional constitutions.

To coordinate intergovernmental relations, the draft establishes a ‘Federal Intergovernmental Commission’. The Commission will principally work on financial issues but has an additional mandate to ensure smooth relationships between the federal and regional governments. This is in contrast with some federations, where the organs in charge of financial redistribution are distinct from other intergovernmental coordination mechanisms. A Council of Regional Governors is also anticipated. Disputes between the federal and regional governments appear to be the ambit of the Supreme Court, though the draft also empowers the Constitutional Court to resolve all issues of constitutionality. This could create potential jurisdictional overlap/conflict and may therefore need clarification.In exceptional circumstances, the President would be empowered to ‘intervene’ and ‘take all measures necessary’ to address a region’s failure to ‘comply with its obligation as provided for in the Constitution which seriously undermines the sovereignty, territorial integrity, economy, or the unity of the Federal Republic’. Notably, the president would not need the prior approval of the Congress, particularly the Senate. Instead, the president must present a report to a joint session of Congress within 30 days of intervening. Congress can then take appropriate measures.

Other notable proposals

In addition to the shift to a federal system, with the attendant changes to the composition of the Senate, there are also several other notable innovations.

Socio-Economic Rights

The draft contains a stronger Bill of Rights compared to the 1987 Constitution. The draft Bill of Rights now includes socioeconomic and environmental rights. People would enjoy the right to health, decent housing, adequate food, quality education, and livelihood and employment opportunity. The draft also establishes a new section on civil and political rights which prohibits interference in correspondence and data, protecting the right to privacy. However, lawless violence is now added to the grounds for suspending the writ of habeas corpus. At the same time, there is no longer any mention that the Federal Republic ‘guarantees full respect for human rights’ as in Article II Section 11 of the 1987 Constitution. Instead, the draft confers exclusive jurisdiction on human rights on the federal government and indicates that the Federal Republic ‘values the dignity of every person and guarantees full respect for the person and the right of all citizens to participate in all government processes’.

Political Parties

Political parties in the Philippines are generally seen as weak and disorganized, which has given enormous powers to winning presidents and party leaders. With a view to enhance the status and influence of parties, provisions for stronger, more representative and more accountable political parties are included. Political parties would also be required to ensure equal representation of women candidates ‘as far as practicable’. The formulation leaves the exact manner of women’s representation open, potentially undermining its implementation. The draft also creates a Democracy Fund, a repository of campaign funds that citizens, groups or corporations can donate to, to be distributed to political parties and presidential candidates. It is unclear how the fund will be distributed; there is mention only that a fair share of party campaign funds will be allocated to women candidates. The Federal Commission on Elections would administer the funds and promulgate rules and regulations. Defections among elected officials would be prohibited and subject to sanctions.

Anti-dynasty Provisions

Despite a provision in the 1987 Constitution requiring Congress to enact laws to preclude political dynasties, such a law was never adopted. This allowed the continuation and consolidation of power among families. To avoid a repeat of this challenge, the draft constitution incorporates a self-executing anti-dynasty provision. It defines a political dynasty as ‘when a family whose members are related up to the second degree of consanguinity or affinity’ (whether legitimate, illegitimate, half, full blood) ‘maintains or is capable of maintaining political control by succession or by simultaneously running for or holding elective positions’. Persons that fit this definition would be prohibited from running simultaneously for more than one national, one regional or one local position.

Provisions for Direct Democracy

The draft constitution incorporates extensive provisions for direct popular initiatives in the making, modification or repeal of laws, as well as in the amendment and revision of the constitution. Provisions governing who can initiate, signature requirements, verification, reference to the Constitutional Court, campaign regulations, outcomes etc. are well developed for initiatives at the federal level. The draft also requires the regions to enact, within two years of its adoption, laws regulating popular initiatives at the regional level.

Four Specialized Apex Courts and Several Independent Commissions

The draft constitution proposes the establishment of four high courts: the Federal Supreme Court, the Federal Constitutional Court, the Federal Administrative Court, and the Federal Electoral Court. While the division may lead to specialization, there is a real danger of jurisdictional overlap, which could create confusion as well as potential for forum shopping. For example, as noted above, the exact delineation of jurisdiction between the Supreme Court and the Constitutional Court in relation to the resolution of disputes between the federal and state governments is not clear.

Congress is likely to rework most of the provisions, or possibly ignore the entire draft and write their own version, particularly deleting anti-dynasty provisions.

In addition to the four apex courts, the draft proposes the establishment of six constitutional commissions at the federal level: the Federal Civil Service Commission, the Federal Commission on Elections, the Federal Commission on Audit, the Federal Commission on Human Rights, the Federal Ombudsman Commission, and the Federal Competition Commission.

Another failed effort? A Reluctant Congress, Skeptic Cabinet Members, and an Uninformed Public

In his third State of the Nation address to Congress on 23 July, President Duterte said that the draft constitution ‘will truly embody the ideals and aspirations of the Filipino people’. He stated his confidence that the Filipino people will support this new fundamental law to ‘strengthen democratic institutions’ and ‘create an environment where every Filipino … will have an equal opportunity to grow and create a future that he or she can proudly bequeath to the succeeding generations’.

Despite Duterte’s optimism, the process will not be smooth-sailing. Before a draft charter could go to a referendum, the two legislative houses must approve the draft. Congress is likely to rework most of the provisions, or possibly ignore the entire draft and write their own version. Some of the more radical or innovative aspects of the Consultative Committee’s draft may be dropped. For instance, the anti-dynasty provision in the draft Bangsamoro Basic Law was deleted by members of the Bicameral Conference Committee, many of whom are members of political dynasties themselves, before being endorsed by both houses of Congress for the President’s signature. The same fate likely awaits the more strongly-worded anti-dynasty provisions in the draft charter. Provisions requiring higher educational requirements for members of Congress as well as the changes to the national constituency of the Senate have also triggered opposition.

Provisions requiring higher educational requirements for members of Congress as well as the changes to the national constituency of the Senate have also triggered opposition.

The chair of the Consultative Committee, former Chief Justice Puno, thinks that the best time to hold a referendum on the draft charter is by mid-2019, although there are still debates whether it should be held together with the scheduled 2019 mid-term elections, or scheduled separately so that voters can concentrate on the proposed charter and its provisions in making their decisions. These two scenarios assume that the current Congress can come up with and agree on a draft charter this year or early next year before they adjourn.

The dramatic change in the House Speaker from Pantaleon Alvarez, who appeared hell-bent on producing a new federal constitution in the process alienating other House representatives and the Senate, to former President Gloria Macapagal Arroyo, signals a more professional, efficient and authoritative leadership that can handle discussions on charter change. When Arroyo was president, she already attempted but failed, through a committee and people’s initiative, to change the 1987 Constitution to a federal parliamentary system. She has already displayed a conciliatory stance by sponsoring a resolution that the two houses should vote separately when Congress transforms itself into a constituent assembly. Senators have opposed a joint voting as this would dwarf their votes, as they are outnumbered by members of the lower house. Arroyo also said that she opposes postponing the 2019 elections, which was suggested by Alvarez to allow more time to deliberate on the proposed constitution. However, many senators remain lukewarm to charter change despite Arroyo’s assurances.

The mid-term elections are likely to happen before Congress could approve any draft constitution.

However, the mid-term elections, if conducted as scheduled in 2019, are likely to happen before Congress could approve any draft constitution. Deliberations on the draft would require time and there is increasing demand for greater transparency and consultations. Time is running out for this. With mid-term elections proceeding within less than a year, the perennial problem during an election year will begin to hound legislators starting as early as October when candidates file their certificates of candidacy. House members are expected to be busy campaigning in their districts, even before the campaign period has not started. The leadership changes in the House coupled with the short-term urgency of many House members to get reelected or elected for other positions as well as the growing tensions between PDP-Laban and the President’s daughter’s regional party Hugpong ng Pagbabago, hint that the ‘super majority’ of the President is unravelling and charter change may take a backseat until after the elections next year.

The best scenario for those still pushing for charter change is to hope that the composition of both the Senate and the House after the May 2019 elections will remain or be more favorable for charter change. However, it is too early to make projections about the elections.

The constitution reform process also suffers from low level of popular awareness and support. Polls indicate that changing the constitution is a low public priority. Considering that the people must ultimately approve any proposed constitution in a referendum, the low level of support creates a second layer of blockage to the reform initiative. It is unclear if planned information campaigns to enhance support for the draft constitution would succeed after some controversy about possible spokespersons for the campaigns. Nevertheless, such campaigns may create better levels of understanding if they manage expectations that, while the new constitution may help address some of the problems of the country, it won’t be the solution to all problems.

It appears that the reform process would at best be delayed and at worst fail to go through.

Overall, while the draft constitution could provide a useful starting point, the need for legislative approval of the reforms could mean a modification of some of the core aspects of the draft in Congress, if not total rejection. The low priority for constitutional reform among the populace may result in a potential rejection in a referendum. Even the economic and finance secretaries in Duterte’s Cabinet have expressed some apprehension about the draft and possible risks to the economic programs of the administration should federalism be pursued. In addition, the president’s public expressions of his thoughts about stepping down early and preference for a military junta or other politicians not in the constitutional order of succession to replace him damages confidence in his commitment to constitutional reform. Increasingly, it appears that the reform process would at best be delayed and at worst fail to go through.